In the case of Mapp v. Ohio,2 the United States Supreme Court made the exclusionary rule applicable to the states. The exclusionary rule is a court created rule which renders inadmissible in a criminal proceeding evidence acquired by the government in violation of the United States Constitution. Similarly, evidence acquired in violation of the New Hampshire Constitution is also inadmissible in a New Hampshire criminal proceeding.3

Over the years since Mapp, the courts have grappled with the issue of whether the exclusionary rule should be made applicable in other types of proceedings and in other forums. Recently, the New Hampshire Supreme Court ruled in Lopez v. Director, New Hampshire Division of Motor Vehicles,4 that the exclusionary rule is not applicable in an administrative hearing held under the Administrative License Suspension statute5 (hereinafter ALS).6 This article will first examine the ALS law and the exclusionary rule. Next, there will be an analysis of the legal reasoning and precedent which the New Hampshire Supreme Court had available in rendering the Lopez decision. Finally, there will be a critical look at the Lopez decision.

II. THE ADMINISTRATIVE LICENSE SUSPENSION LAW (ALS)

Under RSA 265:91-a, enacted as part of Laws 1992, Chapter 258, a driver of a motor vehicle is subject to a license suspension if a police officer has, "reasonable grounds to believe the arrested person had been driving or was in actual physical control of a vehicle upon the ways of this state while under the influence of intoxicating liquor, narcotics or drugs,"7 and the driver refuses to submit to a blood alcohol test at the request of the officer or takes a test and has a result at or above the legal limit.8The suspension is triggered by a sworn report of the law enforcement officer which is sent to the Department of Safety, and the driver may request a administrative hearing to contest the validity of the suspension.9

The ALS hearing is a civil proceeding, and "[t]he primary goal of the administrative license suspension process is to remove irresponsible drivers from the stateís highways as quickly as possible to protect the public."10

License suspension has been recognized by the New Hampshire Supreme Court as remedial in nature and not criminal punishment.11 "As such it is a public safety measure in which swift and informal civil administrative license suspension proceedings are separate from the criminal proceedings set forth in RSA 265:82, which deals exclusively with those persons charged with driving under the influence of intoxicating liquor."12

III. THE EXCLUSIONARY RULE
A. Federal Courts

The exclusionary rule originated in federal criminal proceedings as a means to deter federal officer misconduct.13 It was thought that if the police knew in advance that evidence gathered in violation of constitutional rights would be inadmissible in court, they would be deterred from violating those rights in the first instance. The exclusionary rule "is calculated to prevent, not to repair"; its purpose is "to compel respect for the constitutional guaranty in the only effectively available way - by removing the incentive to disregard it."14

Further, the United States Supreme Court was opposed to allowing federal officers to benefit from their illegal conduct. In Elkins v. United States,15 the United States Supreme Court took the rule one step further, by ordering exclusion in a federal criminal case any evidence obtained by a state officer in violation of the Fourth Amendment. In the famous case of Mapp v. Ohio,16 the United States Supreme Court ordered that the rule be applied by state courts in criminal proceedings when there was a violation of the Fourth Amendment.

Since the Mapp case, state and federal courts have grappled with whether to expand application of the rule into other types of proceedings when a violation of constitutional rights has been alleged. In Pennsylvania Board of Probation and Parole v. Scott,17 the United States Supreme Court ruled that the federal exclusionary rule does not bar the introduction of illegally seized evidence in a parole violation hearing, and in United States v. Calandra,18 the Supreme Court held that the exclusionary rule does not apply to grand jury proceedings.

In these two case, the court was concerned that application of the exclusionary rule to nonadversarial or administrative proceedings would further complicate what was traditionally a flexible process unconstrained by extensive litigation and would provide minimal deterrence in light of the deterrent effect already provided in the criminal trial.19 Further, in Walder v. United States,20 the Supreme Court found that the exclusionary rule would not be applied to bar use of illegally seized evidence to impeach the credibility of a defendant. The court ruled that the use of the exclusionary rule was outweighed by the need to prevent perjury and to safeguard the integrity of the trial process.

On the other hand, in the case of One 1958 Plymouth Sedan v. Pennsylvania,21the United States Supreme Court ruled that the exclusionary rule applies in a forfeiture case since such proceedings are quasi-criminal in nature. In describing the nature of the forfeiture proceeding, the court said, "[i]ts object, like a criminal proceeding, is to penalize for the commission of an offense against the law."22

Application of the exclusionary rule to bar the admission of evidence in some civil cases remains an open question for the United States Supreme Court. In United States v. Janis,23the Supreme Court ruled that evidence seized by state officers who were investigating illegal state criminal gambling would not be excluded in a federal civil wagering tax assessment case. The court reasoned that, "the additional marginal deterrence provided by forbidding a different sovereign from using the evidence in a civil proceeding surely does not outweigh the cost to society of extending the rule to that situation. If, on the other hand, the exclusionary rule does not result in appreciable deterrence, then, clearly, its use in the instant situation is unwarranted."24Thus, the court firmly established a balancing test to weigh the costs to society in applying the rule in a civil case verses the appreciable deterrent effect it would have on police conduct. The court also drew a distinction in cases involving intersovereign use of illegally seized evidence and favored avoiding application of the rule in a civil case when that proceeding falls outside the officerís "zone of primary interest."25

Janis has been interpreted by the Federal Circuit courts to leave open the prospect of use of the exclusionary rule in civil proceedings when there is an intrasovereign use of the evidence. However, the circuit courts have interpreted Janis to mean that the result could have been different if officers of the same agency were interested in using the evidence seized in both the criminal and civil proceeding. Specifically, in Tirado v. C.I.R.,26 the Second Circuit Court of Appeals described a growing trend among the federal courts to allow application of the rule in civil proceedings in which the seizing officials have an interest and contemplated using the evidence in that proceeding. The main issue for the court in Tirado was whether use of the evidence in the civil proceeding was a motivating factor for the police. The court said, "We therefore agree that the exclusionary rule can be properly and beneficially applied in those civil proceedings where it has a realistic prospect of achieving marginal deterrence."27 In other words, the court rejected a strict criminal case verses civil case analysis, and instead looked at the relationship between the purpose of the evidence gathering and the subsequent proceeding in deciding whether application of the rule would achieve deterrence. For instance, the court recognized that there would be a greater likelihood of deterrence when there was an intrasovereign violation and use of the illegally seized evidence, and cited Pizzarello v. United States,28 in which records seized by the IRS for use in a criminal prosecution for evading wagering taxes were also excluded in the civil tax proceeding. In Pizzarello, the court noted that if the rule was not applied where needed, "the Government would be free to undertake unreasonable searches and seizures in all civil cases without the possibility of unfavorable consequences."29 It is interesting to note that certiorari was denied in both Tirado30, and Pizarello.31

B. State Courts

A small number of state courts have ruled on the applicability of the exclusionary rule to ALS proceedings, and a balancing test similar to the one utilized by the federal courts in determining application of the exclusionary rule was applied. In Powell v. Secretary of State,32 the Maine Supreme Court ruled that the exclusionary rule should not be applied in an ALS proceeding since "there is little additional deterrent effect on police conduct by preventing consideration of the evidence by the hearing examiner. The costs to society resulting from excluding the evidence, on the other hand, would be substantial."33 In its analysis, the court focused on the nature of the proceeding. The court reasoned that the license suspension hearing was a regulatory measure designed to protect public safety and its focus was the simple issue of whether a driver was operating under the influence, and therefore, application of exclusionary rule would add an undue burden thereby complicating the process. A similar result was reached in Westendorf v. Iowa Department of Transportation.34 In that case the court ruled that the application of the exclusionary rule should be restricted to those areas where the ruleís remedial objectives were best served, and reasoned that application of the rule in a driver license revocation proceeding would do little to deter unlawful police conduct. The court balanced what it described as an improbable deterrent effect of applying the rule against the cost of losing relevant and reliable proof of licensed drivers operating while intoxicated.

The Alaskan Supreme Court reached the opposite conclusion in Whisenhunt v. Department of Public Safety.35 In that case, the court ruled that the exclusionary rule does apply in a civil license revocation proceeding. In Whisenhunt, the court ruled inadmissible a blood test result taken in violation of the Respondentís right to consult with counsel in his choice to take or refuse the test. The court focused on the significance of a license revocation sanction in todayís society and concluded that the deterrent effect of the exclusionary rule would be significantly weakened if license revocation were excepted from the rule. Similarly, in Williams v. Ohio Bureau of Motor Vehicles,36 the court ruled that the loss of license for refusing a chemical sobriety test was a penalty more akin to a criminal sanction, and ruled that the exclusionary rule should apply in those proceedings.

Most states have relied on the application and interpretation of state statutes and have determined that evidence obtained as a result of an illegal stop or arrest is inadmissible in an ALS proceeding. For example in Illinios, the court in People v. Krueger37 determined that the real issue was not whether to apply the judicially created exclusionary rule, but rather the implied consent law conditioned a license suspension on a valid arrest. In Rhode Island, the court in State v. Bruno38 determined that a reasonable suspicion is required for a motor vehicle stop as predicate for an ALS suspension. In Delaware, the court in Howard v. Voshell39 found that their license revocation statute requires that there be probable cause to believe that the driver is under the influence and the stop must be consistent with the Fourth Amendment to the United States Constitution. In Connecticut, the court in Field v. Goldberg40 held that their implied consent statute requires a lawful stop and arrest. Further, some states have written the requirement of a valid stop and arrest into their license suspension statutes.41

IV. THE LOPEZ DECISION
A. The Facts

Mr. Lopez was stopped at about 1:30 am on February 28, 1998, by Lincoln Police Officer McKinley while he was on patrol in neighboring Woodstock, New Hampshire. Trooper Turhune of the New Hampshire State Police had been following Mr. Lopez just before the stop, but he was unaware of the reason why Officer McKinley made the vehicle stop. When Trooper Turhune arrived on the scene and observed Mr. Lopez, he noted indicia of alcohol impairment, and arrested him for driving while intoxicated. Lopez then refused to submit to a blood alcohol chemical test, and Trooper Turhune requested license suspension by the Department of Safety under the ALS statute.

B. Appellate Arguments and Court Holdings

Officer McKinley did not testify at the ALS hearing, and consequently, there was no evidence submitted by the state concerning the basis for the motor vehicle stop of Mr. Lopez.42 The hearing examiner upheld the license suspension, and the Respondent appealed to the Superior Court.43 The Superior Court reverse the decision of the examiner ruling that evidence of a valid traffic stop was necessary to uphold the administrative license suspension, and that the exclusionary rule was applicable in ALS proceedings.44The State appealed to the Supreme Court, and in a unanimous decision, the court reversed the Superior Court holding that a valid stop and arrest were not within the scope of the ALS statute, and that the exclusionary rule would not be extended to those proceedings.45

C. Case Analysis

In its decision, the Lopez court drew a clear distinction between criminal and civil proceedings. The court looked to United States Supreme Court cases and stated, "[t]he United States Supreme Court, when called upon to interpret federal law, has specifically limited the exclusionary rule to criminal trials. . . We see no reason to apply the rule to ALS hearings."46 The analysis ended without discussion of the deterrent effect or cost to society in applying the rule to ALS proceedings. In so doing, the court stepped away from the balancing test applied by most other state and federal courts that have determined extension of the rule. This bright line distinction is particularly noteworthy for several reasons. First, the United States Supreme Court has not specifically limited application of the exclusionary rule to criminal cases. The Supreme Court left the door open for civil application of the rule in United States v. Janis,47 by steering away from the criminal verses civil analysis, and by opting for a test balancing the additional deterrent effect application of the rule would have against the cost to society when relevant evidence is lost. Second, the New Hampshire Supreme Court has in the past applied a similar balancing test in Simpkins v. Snow,48 wherein the court declined application of the exclusionary rule in a civil defamation trial and held that application of the rule would have minimal deterrent value. Third, introduction of illegally obtained evidence in an ALS proceeding is an intrasovereign use of evidence which benefits the violating sovereign, and although the ALS proceeding is administrative, the result nevertheless is that the offending officers are free to gather evidence with the ALS proceeding in mind, and use the evidence offensively in a proceeding which is separate but parallel to the underlying criminal case.

Even more interesting was the courtís ruling that the ALS statute does not require a valid arrest, despite the language contained therein requiring that an officer have reasonable grounds to believe the arrestee had been operating a vehicle while under the influence.49 The New Hampshire Supreme Court has held in numerous cases that reasonable grounds to believe is synonymous with probable cause.50It is axiomatic that if the ALS statute requires probable cause for the arrest, then the arrest must be lawful.

Finally, it is difficult to square the Lopez decision with the New Hampshire Supreme Courts prior pronouncements in State v. Canelo51 and State v. Ball52. In Canelo, the court refused to follow the United States Supreme Court by declining to carve out a good faith exception to the exclusionary rule. It declared that the exclusionary rule was not simply to deter police misconduct, but to protect the strong right to privacy inherent in Part 1, Article 19 of the New Hampshire Constitution.53 In Ball, the court determined that Part 1, Article 19 grants greater protection to New Hampshire citizens than the Fourth Amendment to the United States Constitution.

V. CONCLUSION

Extension of the exclusionary rule to ALS proceedings is not a clear cut issue. Other states have weighed the significance of a license loss sanction and concluded that the deterrent effect of the exclusionary rule would be significantly weakened if the sanction of a license revocation was excepted from the rule. Other courts have rejected the criminal verses civil distinction as a basis for decision and noted that application of the rule in some civil cases is warranted to reinforce constitutional protections. Most states have resolved the dilemma through statutory interpretation and by enacting statutes which require a lawful stop and arrest. Considering the plethora of motor vehicle cases generated on a daily basis, and the significance of a license loss in todayís society, it is likely this issue is not yet settled in New Hampshire.

ENDNOTES

1.

The views expressed in this article are those of the author.

2.

Mapp v. Ohio, 367 US 643 (1961).

3.

State v. Ball, 124 NH 226 (1983). The court held that evidence obtained in violation of Part 1, Article 19, of the New Hampshire Constitution is inadmissible and would be suppressed.

This means that evidence obtained as a result of an illegal motor vehicle stop or arrest will be admissible against the driver in an ALS proceeding.

6.

ALS is sometimes referred to as Implied Consent since a driver by statute consents to blood testing by virtue of obtaining the privilege to drive.

7.

RSA 265:91-b II(a).

8.

RSA 265:91-b II(d).

9.

RSA 265:91-a and 265:91-b. An administrative hearing is separate and apart from the underlying criminal charge for Driving While Intoxicated (DWI). The results of one proceeding do not effect the other. See State v. Cassidy, 140 NH 46 (1995). While the administrative proceeding takes place before a hearings examiner at the Department of Safety, the DWI proceeding takes place in court before a judge. The penalty for DWI includes a fine, license loss, and or jail. See RSA 265:82-b. The sanction for ALS is a license loss of six months for the first offense with no prior refusals, and two years with a prior DWI or refusal within seven years. See RSA 265:91-a. The license loss for DWI first offense is typically 90 days, but can run up to two years. RSA 265:82-b.

10.

Cassidy, at 49.

11.

Id. at 49.

12.

Lopez, supra, slip op. at 3.

13.

See Weeks v. United States, 232 US 383 (1914).

14.

Elkins v. United States, 364 US 206, 217 (1960).

15.

Id.

16.

Mapp, 367 US 643.

17.

Pennsylvania Board of Probation v. Scott, 524 US 357 (1998).

18.

United States v. Calandra, 414 US 338 (1974).

19.

See also INS v. Lopez-Mendoza, 468 US 1032 (1984). In a narrow 5-4 decision, the US Supreme Court ruled that the exclusionary rule was not applicable in an administrative deportation proceeding even though there was rarely a parallel criminal prosecution in deportation matters.

Lopez v. Beecher, No. 98-E-0062 (Grafton Cnty Sup. Ct. Oct. 7, 1998). The Lopez case was actually the product of a procedural irregularity. Prior to Lopez, a majority of superior courts were applying the exclusionary rule to ALS hearings, (See also Leblanc v. Beecher, No. 99-E-0021 (Straf. Cnty Sup. Ct. Mar. 4, 1999), holding that the exclusionary rule was applicable in ALS proceedings.) and consequently, officers were regularly testifying to the legal basis for the stop and arrest. In the Lopez matter, the officer who made the stop was not at the ALS hearing and did not testify, however, the hearing officer ruled, nevertheless, that the stop was lawful. See id.

44.

Id. slip op. at 3 and 4.

45.

Lopez v. Director, supra. It is interesting to note that Mr. Lopez was not represented in the Supreme Court proceeding since his counsel withdrew. Consequently, no brief was filed for the Respondent.

46.

Id. slip op. at 4.

47.

428 US 433 (1976).

48.

Simpkins v. Snow, 139 NH 735 (1995). The court specifically examined the motivation of the seizing officer, and noted that the illegally seized evidence was not used offensively at trial nor was its use contemplated by the officer at the time of seizure.

Part 1, Article 19 of the New Hampshire Constitution and its counterpart, the Fourth Amendment to the United States Constitution prohibit police detentions and seizures of persons without a warrant except based on articulable suspicion and probable cause.

The Author
Attorney Jeffrey D. Spill is the staff attorney for the Bureau of Securities Regulation, Department of State, Concord, New Hampshire, and formerly a Hearings Examiner for the New Hampshire Department of Safety, and Assistant Hillsborough County Attorney.